Expected vaccine requirement for federal workers raises new questions

July 29, 2021

iStock/Ridofranz

(WASHINGTON) — President Joe Biden is likely to announce a vaccine requirement for the nation’s federal employees Thursday, according to a source familiar with the discussions.

The decision is dependent on an ongoing policy review, which could determine whether employees will be able to opt out of vaccination and instead, undergo regular testing and continue masking.

“It’s under consideration right now,” Biden said of a vaccine mandate for federal workers Tuesday afternoon. “But if you’re not vaccinated, you’re not nearly as smart as I thought you were.”

“Our goal as a federal employer is to keep our employees safe and to also save lives,” principal deputy press secretary Karine Jean-Pierre said Wednesday.

For the nation’s nearly 2.1 million civilian federal workers, many questions about the move remain unanswered. The possible requirement also raises ethics questions, since the vaccines have not been fully authorized by the Food and Drug Administration.

Pfizer, Moderna and the Johnson and Johnson vaccines were granted an Emergency Use Authorization (EUA), but the FDA is facing pressure to issue full authorization of the vaccines, which could open the door to mandates in schools, and the military.

“The FDA recognizes that vaccines are key to ending the COVID-19 pandemic and is working as quickly as possible to review applications for full approval,” FDA spokesperson Alison Hunt said in a statement.

David Magnus, the director of the Stanford Center for Biomedical Ethics, argued that the step was not ethically needed to require vaccines, given they have proven to be safe and effective in their current use.

“I don’t think that the FDA approval versus the EUA should have any bearing at all on whether or not a mandate is put in place,” he told ABC News in an interview.

Magnus argued that the expected announcement could leave workers with some choice on vaccine, but a consequence for not getting the shot.

“Some of the vaccine mandates — I believe the one that’s proposed by Biden, and the one that’s been put in place here in California are actually quite soft. They’re not really mandates,” Magnus said.

“They’re requirements, but not mandates, because not only do they have exceptions allowed, the consequences of not being vaccinated are not that this is a condition of employment. It’s that if you fail to do this then you have to take other public health measures to ameliorate it, like regular testing and wearing a mask at all times,” he added.

But Department of Justice lawyers have concluded that the law “does not prohibit public or private entities from imposing vaccination requirements,” even for vaccines that are not yet fully approved by the FDA, according to a July 6 opinion from the department’s Office of Legal Counsel.

“Although many entities’ vaccination requirements preserve an individual’s ultimate ‘option’ to refuse an EUA vaccine, they nevertheless impose sometimes-severe adverse consequences for exercising that option,” the DOJ legal analysis concludes, citing, for example, refusal to enroll students who refuse to vaccinate at a university.

In June, a federal judge in Texas ruled in favor of a Houston Methodist Hospital, which was sued by 117 employees over the hospital’s vaccine mandate.

“Methodist is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients, and their families safer,” U.S. District Judge Lynn N. Hughes wrote in the opinion.

The leading plaintiff, the judge wrote, “can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.”

One professional association representing federal employees, the Federal Law Enforcement Officers Association, expressed concern about the expected vaccine requirement Wednesday.

“Forcing people to undertake a medical procedure is not the American way and is a clear civil rights violation no matter how proponents may seek to justify it,” association President Larry Cosme said in a statement. “We would therefore encourage the administration to work collaboratively with FLEOA and other federal employee groups to incentivize all federal employees to be vaccinated, rather than penalize those who do not.”

The expected vaccine requirement comes as the Centers for Disease Control and Prevention released revised mask guidance on Tuesday, calling for fully vaccinated individuals in “high” or “substantial” transmission level areas to resume wearing them.

Departing the White House for a trip to Pennsylvania Wednesday, Biden was seen unmasked exiting the Oval Office, despite Washington being considered a “substantial” transmission area. Biden’s destination, Macungie Township in Pennsylvania’s Lehigh Valley, is considered a “moderate” transmission area, so the president did not don a mask there.

But shortly after the CDC’s announcement Tuesday, White House reporters were instructed to resume wearing masks while indoors by the White House Correspondents Association and Vice President Harris was seen wearing a mask during an indoor meeting.